RUGBY FOOTBALL UNION COMPETITIONS APPEAL PANEL DECISION 1. This determination arises from the decision of the RFU Governance Standing Committee ( GSC ) to approve proposals submitted to it by the Competitions Team (Development), in June 2018 ( the June Proposals ), in respect of the make-up of the North-West Leagues structure at Level 7 and below, for the 2018-19 season. Hearing Date: Appeal Panel: Appellants: RFU Representatives: RFU Disciplinary Hearings Manager : 10 July 2018 (by telephone conference) Aidan O Brien (Chair) & John Vale. Aspatria RUFC, Hawcoat Park RUFC, Keswick RFC, Upper Eden RUFC, Wigton RUFC, St Benedict s RUFC, Workington RUFC and Cumbria RFU. Gary Self (Counsel), David Barnes (RFU Head of Discipline), Mike Smith (Chairman NDOC), Paul Astbury (London & SE DOC & RFU Adult Competitions Management Sub-Committee). Rebecca Morgan. DECISION (a) The Appeal is partially upheld. The Appeal Panel finds that the GSC was empowered to approve and impose the June Proposals, however, the relevant Cheshire, Lancashire and Cumbria clubs should have been consulted before the decision was made. (b) The RFU is hereby directed to conduct a further consultation with the relevant Cheshire, Lancashire and Cumbrian clubs before a final decision as to the league structures for the 2018/19 season is made. (c) The Appeal Panel directs the RFU to arrange a face-to-face meeting with the relevant Cheshire, Lancashire and Cumbrian clubs and any other interested parties at the beginning of the week commencing 16 July 2018. 1
(d) Following this consultation, the GSC is empowered to impose a decision in respect of the North-West Leagues structure (Level 7 and below), for the 2018/19 season, subject to a further right of appeal to a RFU Appeal Panel. (e) The RFU shall undertake a comprehensive review of the North West League (Level 7 and below) structure prior to the 2019/20 season. The Appeal Panel expects all of the relevant Cheshire, Lancashire and Cumbrian clubs to be actively engaged so as to ensure that any remaining concerns can be appropriately considered. PRELIMINARY MATTERS 2. The original panel appointed to hear this Appeal was comprised of three members. For reasons unknown, a wing member did not connect to the conference call. Following assent from the parties, the Appeal Panel Chairman directed that the matter should proceed. The parties confirmed that they accepted the Appeal Panel s jurisdiction to hear this Appeal. BACKGROUND FACTS 3. In or around 2 May 2018, 19 Lancashire RFU Clubs resigned from the English Clubs Championship, citing an unwillingness to continue travelling to games based in Cumbria. Following this, the North Divisional Organising Committee ( NDOC ) made repeated attempts to restructure the North West League, at Levels 7 and below, in a way that was acceptable to the various clubs who continue to participate therein. 4. In January 2018, the RFU held a meeting with representatives from the NDOC, the Cheshire, Lancashire and Cumbria clubs & RFU, which resulted in the proposal of a conference type structure. The Cheshire, Lancashire, and Cumbria clubs subsequently rejected this proposal. 5. On 30 May 2018, the NDOC held a further meeting with the Cheshire, Lancashire and Cumbria RFU and proposed a Status Quo Restructuring Plan 2
( the May Proposals ). The Cheshire clubs subsequently rejected the May Proposals. 6. On 11 June 2018, the NDOC held another meeting with the Cheshire, Lancashire, and Cumbria RFU with a view to securing agreement on the May Proposals. Again, agreement could not be reached and the Cheshire clubs gave notice that they intended to initiate an appeal against the imposition of the May Proposals. The spectre of further resignations from the RFU leagues was mooted. 7. On 20 June 2018, the GSC delegated authority to the Competition Team (Development) to support officials from the NDOC in finding a solution to the impasse. This included the option to find a solution outside the parameters of Regulation 13. On 29 June 2018, the GSC published its approval of the Competition Team s June Proposals. 8. The GSC recognised that the recent resignation of 19 Lancashire clubs and dispute regarding the structure of the North West Leagues was borne from historical issues. The June Proposals therefore involved the RFU Adult Competitions Development Sub-Committee undertaking a comprehensive review of adult male rugby in the North with the intention of identifying a league structure for implementation in 2019/20. 9. Prior to the completion of this review, an interim arrangement would be imposed, summarised as follows: The interim solution to ensure RFU Leagues are delivered in the northwest for 2018/19 is to restructure the leagues so that they are based on county boundaries (a) Cheshire/Lancashire and (b) Cumbria at Levels 7 and below, and therefore to disapply Level Transfer Regulations (13.2.11). In addition, consideration has to be given to introducing different league sizes and formats in order to address the concerns of clubs as identified above. Therefore, Regulation 13.2.4 (a)(viii) will not apply in 2018/19 3
10. The GSC purportedly approved the June Proposals under Regulation 13.1.3. 11. On or around 1 July 2018, Aspatria RUFC, Hawcoat Park RUFC, Keswick RFC, Upper Eden RUFC & Wigton RUFC submitted an appeal against the imposition of the June Proposals, with each providing written submissions in support. St Benedict s RUFC, Workington RUFC and the Cumbria RFU subsequently joined issue, providing further written submissions in support of the Appeal. 12. The Appellants written submissions are detailed and shall not be fully rehearsed herein, save as to note that their concerns regarding the June Proposals fell under three broad headings (a) the fairness of the procedural process, (b) the deleterious impact on the attractiveness & competitiveness of Cumbrian rugby, and (c) the adverse financial consequences. RFU RULES & REGULATIONS 13. The Appeal Panel considered the following RFU Rules & Regulations in determining this Appeal: Regulation 19.1.8: In the event that a particular incident takes place for which there is no provision in RFU Regulation 19 including (but not limited to) procedure, jurisdiction or sanction then the Disciplinary Panel or Appeal Panel may take such action that it considers appropriate in the circumstances in accordance with general principles of natural justice and fairness. Regulation 13.1.3 Power to vary, disapply, amend or make further regulations during the season In the event that the Committee considers it is in the interests of rugby union football or an RFU Competition, it may amend or vary RFU Regulation 13 and the Appendices and/or make further regulations during a Season: 4
(a) where in the view of the Committee exceptional and material circumstances have occurred during any RFU Competition which either have not been provided for or cannot be equitably dealt with under RFU Regulation 13 (particularly if promotion or relegation is likely to be materially affected), the Committee may at its own instigation introduce regulations for the current Season and/or determine the results of matches that have not been played for reasons related to the above exceptional and material circumstances and/or determine which Clubs should or should not be relegated); (b) any regulation or decision made or taken by the Committee under this Regulation shall become final and binding unless any person or Club affected has given notice of an appeal to the RFU Head of Discipline within 48 hours of that person or Club affected being made aware of it and an Appeal Panel rules that the regulation or decision of the Committee shall not apply. Regulation 13.1.4: Power to vary, disapply or amend RFU Regulation 13 on a local basis 13.1.4 In the event that a Club, Divisional Organising Committee or Constituent Body wishes to seek the amendment or variation of RFU Regulation 13 or the Appendices on a local basis to apply to Level 5 or below, the following procedure must be applied: (a) the Club, Divisional Organising Committee or Constituent Body must: (i) prior to the commencement of the Season, provide written notice (explaining the proposed amendment or variation) to all those Clubs affected; and (ii) give reasonable (and in any event not less than 7 days) notice to other Clubs that might be affected so that adequate opportunity is given for Clubs that might be affected to express their views, meaningful and adequate consultation takes place with all Clubs that might be affected and no Club in a Constituent Body not a party to such an application is in any way affected or adversely prejudiced by any amendment to or variation 1 of RFU Regulation 13 or the introduction of any further regulation pursuant to the said application; 5
(iii) consult with any other interested party (which it in its sole discretion deems appropriate) together with the appropriate Organising Committee and, if applicable, sponsor; and (iv) submit to the Committee for approval a written application, together with full detail and supporting evidence, supported by its Constituent Body; (b) The Committee will only approve the amendment, variation or new regulations if it is satisfied: (i) that written notice under paragraph (a) above has been given to all those Clubs affected prior to the commencement of the Season; and (ii) that any amendment, variation or new regulation is in the interest of the game of rugby union football and does not adversely affect or prejudice an RFU Competition, any sponsor, or other Clubs in an RFU Competition. Regulation 13.2.9: Power to Vary Promotion and Relegation Where in exceptional circumstances the strict application of Regulations 13.2.6, 13.2.7 and 13.2.8 above creates a significant disadvantage to a Club or Clubs, the Committee can effect a 1 variation which removes or reduces the significant disadvantage for the benefit of the game of rugby union overall in the locality and the Committee may in its discretion take such factors as it deems appropriate into account. Regulation 2.3: Power to vary these Regulations 2.3.1 The Council shall have the power to vary these Regulations and to make new resolutions and Regulations at any time, both during and outside the Season. 2.3.2 The Council shall be empowered to delegate its powers under Regulation 2.3.1 to the Governance Standing Committee and/or the Committee on such terms as the Council thinks fit. 6
2.3.3 The Council shall have discretion to decide on matters not provided for in these Regulations and the Council s decision(s) in respect of those matters shall be final and binding save for any right of appeal or review as may be specifically reserved under RFU Regulations. RFU Rule 4: Powers of the Union To further its objects the Union shall have the power to do all such things as are incidental or conducive to the objects of the Union including (but not limited to) all or any of the following: 4.13 To pass such resolutions relating to the policies of the Union and such regulations which shall be binding on all Constituent Bodies, National Representative Bodies, Referee Societies and Clubs and their respective members, servants and employees and those others under the jurisdiction of the Union as are considered necessary for the better governance and regulation of the Game in England. RFU Rule 16: Powers of the Council The Council shall have the powers set out in this Rule 16.1 or otherwise set out in these Rules: (a) to determine all new or changes to existing policies in respect of the playing, governance and regulation of the game and to pass resolutions and regulations under Rule 4.13, including without limitation to determine the criteria for membership of voting Members and of non-voting members of the Union (h) to delegate powers under the Laws of the Game and the World Rugby Regulations and RFU Rules and Regulations to Constituent Bodies or such person, persons or groups of persons as the Council may from time to time determine. All powers so delegated shall be defined and the Constituent Bodies to which they are delegated shall be listed in the Handbook RFU Handbook: 7
[Page 27] The Governance Standing Committee Terms of Reference The Governance Standing Committee is responsible to the Board of Directors and Council for advising on and drafting RFU Rules and Regulations, amendments to World Rugby Regulations and the Laws of the Game and ensuring good governance principles are adhered to by all committees and boards within the RFU and the RFU Council. In particular the Governance Standing Committee shall: Rules Review the Rules of the RFU each year and propose any amendments to the Board and Council for approval and submission to the Members Regulations Review the RFU s Regulations each year and propose any amendments or additional Regulations to the Board and Council for approval THE APPEAL HEARING 14. The Appeal Panel had the benefit of detailed oral submission made by John Wilson on behalf of all the Appellants, which were further supplemented by additional comments from representatives of several of the Appellant clubs. The Appellants oral submissions expanded upon the written submissions previously provided. 15. In regards to the Appellants concerns regarding the procedural process leading to the June Proposals: (a) The Appellants submitted that the GSC had erroneously approved the June Proposals pursuant to RFU Regulation 13.1.3, given that this regulation only permitted the variation, amendment or addition of further regulations during the season. The June Proposals had demonstrably been devised and approved outside the season window. 8
(b) Conversely, RFU Regulation 13.1.4 prescribed the appropriate mechanism in situations where RFU Regulation 13 was to be subject to variation, amendment or addition of further regulations prior to the season. (c) The RFU and/or any other party had failed to direct that the interested parties should submit to mediation or arbitration, pursuant to RFU Regulation 13.10.12. (d) The Appellants criticised the RFU for failing to adequately set out the appropriate constitutional basis upon which the June Proposals had been made. (e) The Appellants recognised that under RFU Rule 4.13, the RFU enjoyed the power to make and amend regulations. RFU Rule 16.1(a) and 16.1(h) further permitted the RFU Council and/or its delegate to alter policies in respect of playing, governance and regulation by passing resolutions and regulations under Rule 4.13. (f) The Appellants accepted that Regulation 2.3 also gave the RFU Council overarching powers in respect of variation of Regulations, both in and out of a season. (g) The Appellants averred that even if the GSC was permitted to impose the June Proposals pursuant to Rule 4.13, Rule 16.1 and/or Regulation 2.3, the exercise of that power was inconsistent with the stated objects of the game and was thus unsustainable. 16. On behalf of the RFU, Mr Self maintained that the GSC had utilised the powers contained within Regulation 13.1.3. Whilst the title to this Regulation is: Power to vary, disapply, amend or make further regulations during the season this did not form part of the operative wording of the Regulation, the proper construction of which permitted the RFU Committee to alter Regulation 13 and/or make further regulations during the season, i.e. 9
power to alter regulations, including but not limited to those made during the season. 17. Mr Self argued that there existed exceptional and material circumstances in this case which had not been provided for or could not be equitably dealt with under RFU Regulation 13, such that the Committee was empowered at its own instigation to impose the June Proposals. 18. Further and in the alternative, Mr Self cited Regulation 13.2.9 as giving the RFU Committee the discretion to impose the June Proposals, given that they were intended to remove or reduce the significant disadvantage for the benefit of the game of rugby union overall in the locality. In the exercise of this discretion, the Committee was permitted to take such factors as it deems appropriate into account. 19. Mr Self confirmed that the GSC and/or RFU Competitions Team (Development) did not consult with any of the interested third parties prior to the approval of the June Proposals. This was not considered necessary given that the Cheshire, Lancashire, and Cumbria clubs had already been engaged in a protracted restructuring consultation process and had been unable to come to a consensus. Given the need to confirm the relevant league structures quickly, the GCS was right to devise, adopt and impose the June Proposals and had been cognisant of the position of each the constituted bodies and clubs when doing so. 20. The Appeal Panel also heard further evidence from Mike Smith and Paul Astbury, who assisted in further explaining the background to the June Proposals. DETERMINATION 21. The Appeal Panel did not accept that the GSC was empowered to approve or impose the June Proposals, pursuant to Regulation 13.1.3. The wording of the regulation is entirely clear. It empowers the Committee to amend Regulation 13, its Appendices and/or make further regulations, only during the season. 10
22. Sub-paragraph (a) of Regulation 13.1.3, expressly limits the power to the introduction of regulations for the current Season and/or determine the results of matches that have not been played for reasons related to the above exceptional and material circumstances and/or determine which Clubs should or should not be relegated) 23. Nothing within Regulation 13.1.3 suggests that it applies to the amendment of Regulation 13 out of season. It is unfortunate that the letter, dated 29 June 2018, confirming the GSC s approval of the June Proposals, erroneously makes reference to this Regulation. 24. Regulation 13.1.4 applies in circumstances where a Club, Divisional Organising Committee or Constituent Body wishes to amend or vary Regulation 13, at Level 5 and below, prior to the season, and prescribes a clear process by which the request and consultation should be undertaken. 25. In the present instance, the June Proposals were devised following the GSC s instruction of the RFU Competitions Team (Development). The GSC thereafter approved the adoption of the June Proposals. Regulation 13.1.4 does not apply to situations where the GSC makes variations or amendments to Regulation 13 prior to the season, only clubs, DOCs and/or CBs. 26. Regulation 13.2.9 further permits the Committee, in exceptional circumstances, to vary the strict application of the relevant regulations in respect of (a) promotion, (b) Relegation, and (c) reduction in the number of clubs in a given league, however, this power does not provide that the GSC may impose an entirely new league structure across Cheshire, Lancashire and Cumbria. 27. Notwithstanding this, the GSC was permitted to approve the June Proposals as a delegate of the RFU Council, pursuant to Regulation 2.3 and Rule 4.13 and 16.1. Notably, the GSC s letter refers to the option to find a solution outside the parameters of Regulation 13. From the foregoing, it is apparent 11
that the GSC has the power to act pursuant to powers granted outside Regulation 13. 28. The exercise of the powers contained in Regulation 2.3 and Rule 4.13 & 16, do not explicitly require the GSC to undertake a notification or consultation process with any interested third party. 29. The Appellants therefore rightly accepted that the GSC had the power to impose the June Proposals. The Appellants case was, however, that the failure to notify or consult them, or any other interested party, rendered the exercise of the power improper notwithstanding that there was no express requirement to do so. 30. The Appeal Panel determined that the RFU or its delegate should have consulted with the relevant Cheshire, Lancashire and Cumbria clubs before imposing the June Proposals. 31. Whilst the clubs had been involved in a long-drawn-out dispute leading up to the June Proposals, such that their general views as to the relevant issues would have been well known to the GSC and RFU Competitions Team (Development), the failure to consult prior to the imposition of the June Proposals denied the clubs a fair opportunity to raise any specific objections they may have had to the same. 32. The GSC s understandable anxiety to find a quick solution to these problems is not a good reason to deny the clubs an opportunity to make their views on the June Proposals known. In the circumstances, the Appeal Panel finds that GSC s exercise of its powers was flawed. 33. The Appeal Panel therefore directs that the RFU is to conduct a further consultation with the interested parties before a final decision is made. This consultation shall consist of a face-to-face meeting at the beginning of the week commencing 16 July 2018. This meeting shall take place at the premises of a Northern club or hotel, to be confirmed forthwith. 12
34. In the event that the relevant attendees cannot agree a suitable venue before 16 July 2018, Rebecca Morgan (RFU Disciplinary Hearings Manager) shall be empowered to determine where the meeting is to be held. 35. Following this consultation, the GSC, led by Paul O Leary (RFU Competitions Manager), is empowered to impose a decision in respect of the North-West Leagues structure at Level 7 and below, subject to a further right of appeal to a RFU Appeal Panel. 36. The Appeal Panel makes no findings as to the appropriateness or otherwise of the June Proposals. That determination is in the discretion of the GSC, which remains able to impose the June Proposals, if deemed appropriate, following further consultation with the clubs. 37. The Appeal Panel also directs that whatever interim league structure is adopted for the 2018/19 season, the RFU must adhere to its commitment to undertake a comprehensive review of adult male rugby in the North with the intention of identifying a league structure for implementation in 2019/20. The Appeal Panel expects all of the relevant Cheshire, Lancashire and Cumbrian clubs to be actively engaged and consulted throughout this process so as to ensure that their concerns can be appropriately considered. The RFU is invited to provide the clubs with written confirmation as to the proposed structure of this review forthwith, so as to ensure it is as transparent as possible. The formal timetable for this consultation process (including any possible appeals) must ensure that it can be concluded before 15 June 2019, in order to comply with RFU Regulation 13.6.1. 38. Finally, the Appeal Panel would like to express its sincere gratitude to all those who took part in the Appeal hearing. This Appeal involves complex and contentious issues and it is hoped that an equitable and swift resolution is in sight. 13
AIDAN O BRIEN JOHN VALE 11 July 2018 14